STUARD v. STATE

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STUARD v. STATE
1984 OK CR 67
681 P.2d 1120
Case Number: O-83-691
Decided: 05/24/1984
Oklahoma Court of Criminal Appeals

Appeal from the District Court, Stephens County.

ORDER

[681 P.2d 1121]

¶1 The appellant, William Elvis Stuard, pleaded guilty in the District Court of Stephens County, Case No. CRF-79-76, to the crime of Embezzlement by Bailee, and was given a three (3) year suspended sentence. The State subsequently filed an Application to Revoke Suspended Sentence, alleging as its sole ground for revocation that the appellant had failed to make restitution payments as ordered. After a hearing on the merits, the trial court ordered that the suspended sentence be revoked. From said order, the appellant brings this appeal to this Court.

¶2 The uncontroverted evidence presented at the hearing showed that the appellant possessed a seventh grade education, and had received training as a welder. Testimony also disclosed that over the previous three years, the appellant had been unable to obtain any employment other than temporary, minimum wage level jobs, and had not earned more than $2,000 in any one year. The appellant had been receiving assistance from the Human Services Department, did not own a vehicle, and lived in a school bus parked behind his mother's home in Picher.

¶3 In Bearden v. Georgia, ___ U.S. ___, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983), the United States Supreme Court held that an indigent defendant's probation could not be revoked for failure to pay restitution absent evidence and findings that the defendant was responsible for this failure, and that alternative forms of punishment would be inadequate to meet the State's interest in punishment and deterrence. Under the facts and circumstances of this case, we find that the State failed to meet its burden of proof as defined by Bearden, supra.

¶4 IT IS THEREFORE THE ORDER OF THIS COURT, that the order revoking the appellant's suspended sentence is REVERSED, and this cause is hereby REMANDED to the District Court of Stephens County for further proceedings not inconsistent with the views expressed herein.

¶5 IT IS SO ORDERED.

HEZ J. BUSSEY, P.J.

ED PARKS, J.

TOM BRETT, J.